During Ennis Britton’s October 2017 Special Education Symposium, participants around the state were given the opportunity to submit questions on note cards. Because of time constraints and the large response, our Special Education Team was not able to address all of these questions during the presentations. In the coming months we will address some of these questions through blog posts and a new feature called “Special Education Spotlight” in the School Law Review newsletter.
One participant asked how to respond to a parent who asks for her child to be evaluated under the Individuals with Disabilities Education Act (IDEA) when the district does not suspect a disability but the parent has a private evaluation that concludes the student has a disability.
This scenario brings at least two parts of IDEA into play. The first is the issue of child find. A district has an obligation to “find,” or identify, all children within its territory that are potentially eligible under IDEA or Section 504. This is an affirmative obligation, meaning that each district must take active steps to identify such children – it is not enough to wait for parents to ask for an evaluation. That said, a parent certainly has a right to ask for an evaluation. In such a case, the district should respond in writing to the request using a Prior Written Notice form (PR01), either agreeing to proceed with an evaluation or refusing to do so.
A district should be cautious about refusing to evaluate a child when, as is the case in this scenario, an outside evaluator has identified the child as having a disability. Even when a school has not observed anything to suggest that a child has a disability, it is possible that he or she does. For example, a child might have ADHD but not exhibit characteristics at school due to effective medication. Such a child may still be eligible under Section 504 because the law requires districts to factor out mitigating measures such as medication in making eligibility determinations.
Second, assuming the district in this scenario proposes to evaluate the child, the parent consents, and the evaluation is completed, the IEP team may need to consider the private evaluation shared by the parent as part of the evaluation process. This is required whenever a parent acquires an independent educational evaluation (IEE) that meets a district’s reasonable criteria (credentials of the evaluator, validity of the evaluations, etc.). The good news is that in this scenario, absent an order from a court or hearing officer, the district is not required to pay for the IEE because the parent did not disagree with a district evaluation at the time the IEE was acquired.
Even when an IEE meets a district’s reasonable criteria, the law does not require absolute deference by the IEP team to the opinions of an outside expert. In fact, the law gives the IEP team the ultimate discretion as to how much weight to give to the IEE. The specific regulatory language requires the IEP team to “consider” the IEE. This means that the team reviews the information, holds it up against other information the team has about the child, and engages in meaningful discussion of the information. It does not mean that the team adopts all findings or directions of an outside evaluator because he or she is an “expert” or holds some sort of advanced degree. Remember, while outside opinions can be helpful, in most circumstances the outside evaluator will have spent at most a few hours with the child in a clinical setting. The IEP team will typically have weeks, if not months or years, of experiences with the child in an authentic setting. School personnel should neither be intimidated nor diminish their own expertise when presented with an IEE.
In the end, if a parent has sought an outside evaluation before asking the school to conduct an evaluation, and the school does not suspect a disability, this may be a sign of further disputes to follow. An early conversation with a member of Ennis Britton’s Special Education Team may be beneficial as you respond to scenarios such as this.
Ennis Britton is very pleased to announce that Ryan M. LaFlamme, Pamela A. Leist, Giselle S. Spencer, Erin Wessendorf-Wortman, and Megan Bair Zidian have been promoted to the position of shareholder in the firm.
“We are proud to have such a fine cohort of attorneys who have a genuine passion for education law,” said C. Bronston McCord, managing shareholder of Ennis Britton. “Their selection to this position is a testament not only to their exceptional abilities as attorneys but also to the continued success of the firm and its commitment to excellence.”
Ryan M. LaFlamme served as a law clerk for the firm during law school before joining the firm as an attorney. He is a member of the firm’s Construction and Real Estate, School Finance, and Workers’ Compensation Practice Teams and practices in many areas of the law concerning school districts including employment issues, construction, student discipline, workers’ compensation, labor arbitration, staff discipline, and policy review and drafting, in addition to general school law and local government practice. Ryan also serves as assistant prosecutor for two municipalities in Ohio. He has represented school district boards of education in both state and federal court. He has also defended school boards before the Equal Employment Opportunity Commission, the state and federal Offices for Civil Rights, the Ohio Bureau of Workers’ Compensation Review Commission, and the Unemployment Review Commission.
Ryan frequently speaks throughout Ohio on education-related topics. He volunteers as a high school mock trial coach annually. He also served as a trustee for the Citizens for the North College Hill Community Center and has served as a treasurer on several levy campaigns. Ryan earned his J.D. from Northern Kentucky University in 2008 and is licensed to practice law in Ohio and in the U.S. Virgin Islands.
Pamela A. Leist served as a law clerk for the firm before joining the firm as an attorney. She is a member of the Special Education and Workers’ Compensation Practice Teams and assists clients with a variety of education law issues including special education, student discipline, labor and employment law, negotiations, board policy review and development, and legislative review. She has represented boards of education before state and federal courts, the U.S. Department of Education Office for Civil Rights, the Internal Revenue Service, the U.S. Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board, the Ohio Unemployment Review Commission, and the Ohio Department of Education. She also serves as the firm’s marketing coordinator.
Pam frequently presents across the state of Ohio on issues related to school law and operations. She has served the local community in many capacities including director of marketing for the Cincinnati Memorial Hall Centennial Event Planning Committee, member of the board of trustees for the North College Hill Community Seniors, Executive Committee member for the North College Hill Business Association, and planning chair for the Ohio State Bar Association’s School Law Workshop. She is also a member of the Ohio State Bar Association’s Leadership Academy Class of 2016. She is currently a legal advisor for the Cincinnati Bar Association High School Mock Trial Competition. Pam earned her J.D. from the University of Cincinnati in 2007.
Giselle S. Spencer is a member of the firm’s Special Education, Workers’ Compensation, and Finance Practice Teams. She counsels school district boards of education and administration on many aspects of education law including employment matters, workers’ compensation, property valuation, student discipline, public records, special education, discrimination complaints, and board governance. She has represented boards of education before state and federal courts, county Boards of Revision, the U.S. Department of Education Office for Civil Rights, the U.S. Equal Employment Opportunity Commission, the Industrial Commission, the Ohio Civil Rights Commission, the State Personnel Board of Review, the State Employment Relations Board, the Ohio Unemployment Review Commission, and the Ohio Department of Education. Prior to entering private practice, Giselle served as director of legal services for Dayton Public Schools and chief legal counsel for Columbus Public Schools. She has also served as chief examiner for the Dayton Civil Service Commission.
Giselle frequently presents on various education law topics at the state and national levels and is a featured presenter for several school employee associations throughout Ohio. Giselle is a 2011 recipient of President Barack Obama’s Volunteer Service Award and has an extensive history of volunteer service, including as a board member for the Habitat for Humanity in Dayton and in Greater Cleveland and as past president of the Thurgood Marshall Law Society. She is a former adjunct professor at Capital Law School and current member of the National School Boards Association Council of School Attorneys, the Norman S. Minor Bar Association, and other bar associations. Giselle earned her J.D. from Ohio Northern University in 1986.
Erin Wessendorf-Wortman advises clients on a variety of education law matters including labor and employment issues, student discipline and rights, special education, relationships with school resource officers, serving transgender students, employee misconduct and investigations, and general school law practice. She is also a member of the firm’s Special Education and Workers’ Compensation Practice Teams. Erin has represented school boards before a variety of federal and state administrative agencies including the Ohio Civil Rights Commission, State Employment Relations Board, Internal Revenue Service, U.S. Equal Employment Opportunity Commission, and U.S. Department of Education Office for Civil Rights.
Erin is a frequent presenter at professional conferences and at administrator and staff in-service trainings. She is a member of the Cincinnati Bar Association and the Ohio State Bar Association. Erin earned her J.D. from The Ohio State University in 2009.
Megan Bair Zidian advises public school districts and boards of education on a variety of education law matters including collective bargaining, labor and employment issues, student discipline and privacy issues, special education and board policy, and administrative guideline development. She is a member of the firm’s Special Education and School Finance Practice Teams. She has defended boards of education in arbitration, special education due process hearings, and state and federal administrative agencies including the State Employment Relations Board, Ohio Civil Rights Commission, U.S. Equal Employment Opportunity Commission, and Office for Civil Rights. Megan also has extensive experience in the school transformation process and assists academically distressed districts in navigating that progression.
Megan is a frequent speaker at school conferences and regularly provides in-service training to school administrators and staff members. She serves on the Council of School Board Attorneys for the Ohio School Boards Association and is a member of the Council of School Attorneys of the National School Boards Association. Megan earned her J.D. from the University of Akron in 2011.
Please join us in congratulating each of them on their new role at Ennis Britton!